First Circuit Shoots Down DOMA

The Boston-based First Circuit U.S. Court of Appeals in Boston ruled today that the Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.

DOMA doesn’t invalidate same-sex marriages in states that permit them, such as Massachusetts, but the law denies same-sex couples federal benefits enjoyed by opposite-sex couples, such as the ability to file joint federal tax returns and receive survivor benefits if one spouse dies.

Judge Michael Boudin, an appointee of President George H.W. Bush, authored the unanimous decision. He was joined by Judge Sandra Lynch, a Clinton appointee, and Chief Judge Juan Torruella, a Reagan appointee.

The First Circuit put its decision on hold, anticipating an appeal to the Supreme Court.

One piece of DOMA remains in the First Circuit, which encompasses Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. The court didn’t consider Section 2, which absolves states from recognizing same-sex marriages licensed in other states.

WSJ’s Jess Bravin will have a story on the ruling, but in the meantime, here are a few key excerpts, with citations omitted:

It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.

From page 22:

[T]he denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.

From page 25:

[I]t is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.

But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme
Court precedent marks this as a reason undermining rather than bolstering the distinction. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process.

On the argument that the law supports child-rearing in the context of stable marriage, from page 26:

The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.

Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.

From page 27:

For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis.

From pages 28-29:

If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.

Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).

From page 30:

[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

About Law Blog

The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

Must Reads

Plaintiffs' lawyers dodged a bullet last year when the U.S. Supreme Court spared a quarter-century-old precedent that had served as the legal linchpin of the modern investor class-action case. Despite that win, a new report suggests that securities class actions have lost some of their firepower.

In a week in which images of Prophet Muhammad were connected to acts of terror and defiant expressions of freedom, a sculpture of the prophet of Islam inside the U.S. Supreme Court has drawn little notice.

Alan Dershowitz has vowed to slap a defamation suit against the two lawyers who claimed in a court document that Florida financier Jeffrey Epstein arranged sexual liaisons for him with an underage prostitute. Those lawyers have beaten him to the punch.

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention. Drawing less coverage is the lawsuit itself -- a case with the potential to expand the rights of crime victims during federal investigations.